Monday, July 29, 2013

Grits will be on hiatus for a couple of weeks to spend some time with the family. See y'all sometime around mid-August or so. Until then, use this as an open thread to let me know what issues and events the blog ought to be paying attention to upon my return.

Sunday, July 28, 2013

Texas Attorney General and gubernatorial candidate Greg Abbott is singing a tired tune on border security, pretending that it's possible to finance a massive border security expansion based on asset forfeiture funds. A story in the McAllen Monitor (July 27) began thusly:

Calling it “the most significant vulnerability
to the State of Texas,” Attorney General and gubernatorial candidate
Greg Abbott outlined last week a broad strategy to secure the
Texas-Mexico border.

In a telephone interview, Abbott said as
governor he would work to put “more boots on the ground” at the border,
improve communication and cooperation between state and local and
federal agencies and increase the use of technology, all of which would
be funded largely by seizures of illegal assets through aggressive
prosecutions of money laundering operations.

“I believe our crackdown and
taking of transnational gang and international drug cartel assets will
fund a large part of the expansion of operations we need on the border,”
he said.

This is pure silliness for a number of reasons. First, the border is essentially secure now thanks to a massive federal Border Patrol buildup. The smuggling of both drugs and humans primarily happens through the checkpoints, which are under federal control and not something Texas state officials can do anything about. And Texas border towns are among the safest places in the state - if you were going to focus resources where the crime actually is, it'd be Houston and Dallas, not El Paso and McAllen.

But the biggest fallacy Abbott's promoting is the idea that asset forfeiture would fund all these extra "boots on the ground." Several of Texas' now-defunct regional narcotics task forces tried this "eat what you kill" strategy after Governor Perry cut of their funding in 2006. None of them were able to make it work. And Abbott's own asset forfeiture division at the AG's office hasn't been able to tap into all this extra money, so why would that change if he becomes governor? Forfeiture funds are unpredictable, unreliable, and vastly insufficient. Law enforcement may enjoy temporary windfalls but in aggregate the drug war is a money pit, not a money maker.

Saturday, July 27, 2013

A few odds and ends that won't make it into their own posts before the blog goes on hiatus for a couple of weeks.

Dallas sued over choice not to train jailers to recognize health problems
A federal judge ruled a lawsuit can go forward
against the Dallas County Jail alleging lack of state-required training
contributed to the death of a homeless man from pneumonia who died
lying on the floor of his cell. "In his ruling in June, U.S. District
Judge Ed Kinkeade said testimony
showed that Dallas County jailers are not trained to recognize basic
medical distress in inmates so that they can notify the medical staff."
Further, "Evidence in the case shows that the county and Sheriff Lupe
Valdez have
deliberately decided not to train jailers to recognize medical problems
even though state regulations require it." The Dallas jail was briefly on lockdown yesterday after an inmate escaped; he was recaptured within an hour.

Gohmert on metadata, pot smokers and potato chips
Check out a video of Texas Congressman Louie Gohmert railing against the NSA metadata collection program. He compared the program's ostensible justification to a police officer wanting to pursue pot smokers by investigating stolen potato chips, which it turned out was based on an actual search warrant application he declined to process while working as an assistant district attorney.

A Texas law enforcement training center has had its contract with the state rescinded for giving a professional football player credits for law enforcement training he didn't earn. Reported the Conroe Courier (July 24):

Grits has reported in the past that cell-phone location tracking is becoming exponentially more accurate with the growing use of "femtocells" by consumers to boost cell signals in the home. Turns out another signal boosting technology - "picocells" - are making cell-phone tracking even more precise. Grits ran across on article on cell-phone mapping in the May 2011 issue of Law Enforcement Technology magazine, which offered this explanation:

"Picocells" - smaller sites that have 360-degree coverage and are mounted on telephone poles rather than taking up land - are a cost-effective solution for carriers that want to boost signal without building or leasing new towers. As a result, they're becoming prevalent in urban areas. Meant to offload traffic and improve coverage, picocells will be more numerous, and will this provide a much more accurate path of travel and location.

As location tracking becomes more precise, the argument that no warrant should be required to access the information becomes less and less defensible. Location data is the ultimate biometric because no two things, and thus no two people, can be in the same place at the same time, much less travel the same routes moment to moment throughout their days. As tech consultant Jim Cook told the magazine, "Cell phone service is the new DNA." See more background in an interview with Cook from Cops 2.0, from which Grits found the above-referenced article.

Friday, July 26, 2013

The US House of Representatives this week voted down an amendment to eliminate funding for the National Security Agency's collection of metadata from domestic phone calls. Looking at the vote count, one can make the argument that Texas' congressional delegation, particularly Democrats, were the swing faction killing the amendment, allowing the NSA to continue its massive domestic surveillance program. The final vote was 205 Ayes and 217 Nays, with 12 not voting. So if seven members had voted differently, it would have passed.

As it happens, although 57% of Democrats in Congress supported the amendment (111-83), two-thirds of Texas Democrats (eight members) voted to kill it, including several Grits thinks should know better: The no votes from that group were Sheila Jackson Lee, Eddie Bernice Johnson, Ruben Hinojosa, Joaquin Castro, Marc Veasey, Al Green, Henry Cuellar and Pete Gallego. If those eight votes go the other way, the amendment would have passed.

One wonders whether some of the Republicans on the list might find
themselves defending this vote in next year's primary against Tea-Party
oriented challengers. I doubt any of the Democrats will face electoral consequences for the vote, but they still should be ashamed of themselves. Texas pols aren't the only reason the amendment failed, but had they shown a little more backbone, they could have been the reason it succeeded.

Note: The original story misstated the Texas GOP vote count and has been corrected.

Thursday, July 25, 2013

In retrospect, Grits considers Texas' drone bill (HB 912) arguably the weirdest, most surreal piece of criminal-justice legislation passed this session. It's already routinely cited as a national example of how NOT to
craft drone legislation. It was one of those "only in Texas" moments. What other state would put county
misdemeanor prosecutors, justices of the peace, and municipal court
judges in charge of aircraft regulation? Have you ever sat through JP or municipal court?

The problem with banning drones is that they're awesome. Even if you worry about privacy, who doesn't want to fly one of these bad boys? Then, once folks get into it, or once a business finds they fulfill some core need, there's always one more sensor or gadget to add.
There are too many cool things you can do with them - from the mundane
to the ridiculous, from the utterly practical to the absurd and artistic
- to simply ban the technology altogether. And cameras are too
fundamental to how drones operate and the things people do with them to apply a blanket ban on photography, even with HB 912's litany of
exceptions. You can't anticipate every use, good or bad, and wouldn't
want to. Part of the beauty of the current technological revolution is
its open-ended nature. Nobody can say for sure where it's taking us,
just that we're moving awfully fast. But the answer is to cautiously
apply the brakes on the curves, not to derail the train.

I mention this to promote an opportunity for involved parties and opinion leaders to add new tools to their collective toolboxes, and perhaps to figure out when and how to use different ones. Check out this conference in October on Drones and Aerial Robotics; it should be a must-attend affair for everyone in and around the Texas capitol associated with Texas' "drone bill," including state Rep. Lance Gooden, his principal co-conspirators, and their staff but perhaps also representatives from the leadership, too. They let this bill happen, now they need to develop some expertise on their staffs to clean it up the next time.

The speakers list at the NY conference includes most every expert I've run across as Grits researched the questions surrounding Texas' bill during the 83rd session. It includes several people (like Margot Kaminski)
who have forgotten more about drone tech, law and policy than anyone
involved in the Texas legislation ever appeared to know.

Our drone bill was developed within Texas
politics' own little bubble. If a special interest complained, they got a
"carve out" so the bill didn't apply to them. Texans for Lawsuit Reform
signed off on the bill only after including a highly restrictive
damages cap. Anybody with sufficient clout to snuff the bill - which
turned out to be a lot of people - got special provisions written in for
them. The result made the ban on drone photography look like Swiss cheese.
prompting the lobbyist for the prosecutors' association to predict that
the new offense would never be successfully prosecuted in Texas. The
only functional part of the bill is the strong exclusionary rule for law enforcement.

This isn't a knock on Rep. Gooden, his staff, or any other legislators closely involved with the bill. This stuff is hard. There are complicated considerations across the technical, legal, and political fronts, each of which pose dilemmas that would stump Solomon. Nobody's regulated an emerging personal transportation technology like this since since the first
automobile statutes proliferated. It's difficult to know even where to begin. Still, Texas did a big thing badly. The result could harm innovation in Texas industry potentially for years to come in an area where experts say the state is poised to dominate.

The Speaker of the House and the Lt. Governor haven't yet announced Interim Charges for the standing committees but Grits hopes one or both of them include a charge to study the implementation of HB 912 and to recommend improvements to the law. The FAA won't allow drones in commercial airspace until September 2015, so there's still time for Texas to fix this before it really becomes harmful to the state's economic competitiveness. But Texas lawmakers must up their game. HB 912 became such a mess mainly because its proponents and opponents alike lacked a basic understanding of the issues or a clear vision for a sensible path forward. In 17 months when the Lege re-convenes for the 84th session, it would be nice to see the debate over drones occur at a more sophisticated level.

"One, it takes a special person to work with a juvenile at all," she
said, "but you can imagine adding kids that have problems in their
lives, whether it be criminal problems, substance abuse problems or
whatever along with the maturing process, and it gets really
complicated."

Zeplin, who already is raising two children, works with seven kids, but at one point as many as 29 were under her watchful eye.

"The first thing I'll tell my kiddos is, 'I'm going to be like your
mama, you know? I'm gonna be right there. You do something, believe me,
I'm going to find out. And if I have to find out from somebody else that
you did something wrong, then we're going to have problems,'" she said.

And like any proud mama, she boasts about their accomplishments,
especially because a disheartening 50 percent of the kids drop out of
school.

On hard days, Zeplin likes to fish out a green thank-you card from
the belly of her wooden desk. The bubbly handwriting on the card belongs
to a 16-year-old girl, the same girl who used to fling not only
obscenities but also fists at Zeplin.

"Thank you for everything and not giving up on me, like almost
everybody around me has," the girl, who was charged with possession of
marijuana, wrote.

D Magazine has a story in its August issue on Jonathon Stickland's amendment to require a warrant for law enforcement to access cloud-based email and other computer content. The story by Farraz Khan, which quoted your correspondent, called it "the session’s most significant bipartisan piece of legislation." It concluded:

While the legislation was awaiting Governor Rick Perry’s signature, news
of the NSA’s PRISM surveillance program broke, landing electronic
privacy back on the national agenda. The timing was perfect: says
Henson, it made Stickland look “eerily prescient.” On June 14, the
governor signed Stickland’s measure into law, effective immediately.

Now,
in Texas, state law enforcement must secure a probable cause warrant
before it can search private emails or cloud content. According to Allie
Bohm, a speech privacy and technology policy strategist with the ACLU,
Texas is the first state to enact a law protecting email content from
warrantless searches. But it won’t be the last. Stickland’s office has
received phone calls from Republican and Democrat activists and
policymakers from California, Georgia, Kentucky, Oklahoma, Tennessee,
and Virginia, who want to pass similar legislation in their states. And
it puts pressure on Congressional lawmakers in Washington to pass a bill
to amend ECPA that was introduced in the spring by Senators Patrick
Leahy, a Vermont Democrat, and Mike Lee, a Utah Republican.

Not bad for a freshman.

This has been so well received, it makes me even more frustrated we didn't get the warrants for cell-phone location bill passed this session. That would have made a nice two-fer.

Austin officials say that using the readers has made it easier to
find stolen vehicles or those involved in crimes and is not an invasion
of privacy.

“There is no expectation of privacy of vehicles in a public place,”
said Sgt. Felecia Williams-Dennis with the auto theft interdiction unit.
“If your vehicle is in a public place, any person with any type of
camera can take a photo of it and store it forever, so we’re not doing
anything that any other citizen can’t do.”

Using infrared technology, the reader can automatically scan license
plates in the vicinity of the patrol car and alert the officer almost
immediately. The reader can be mounted inside or outside of the vehicle.
The information, including the date and time the license plate was
scanned, is stored in a department database indefinitely,
Williams-Dennis said.

But the civil rights group said that tracking the location and time
for a vehicle has the potential to reveal what friends, doctors,
political events or churches a person is visiting.

“The privacy concerns raised by the proliferation of ALPR technology
go well beyond the mere taking of a photo,” said Rebecca L. Robertson,
legal and policy director for the ACLU of Texas. “And as far as we can
tell from the response to our opens records request, the Austin Police
Department has stored every single license plate scan they’ve ever
taken. With the potential for data mining, license plate scanners
definitely (impede) our right to privacy.”

According to the department’s vendor, Genetec, readers can scan up to 5,000 plates per minute.

The statement that "There is no expectation of privacy of vehicles in a public place" is an argument Grits considers true but trivial. True, that's currently the law under existing Supreme Court rulings. But it's complete bullshit. Nobody outside the courtroom thinks there's not a reasonable expectation that the government won't track your movements when there's no reason to suspect you of a crime. In US v. Jones, five of the nine justices agreed in concurrences that continuous tracking of citizens over time cumulatively resulted in a Fourth Amendment violation (the "mosaic theory," it's called), and that notion is surely implicated by using license plate readers and permanently storing the data for future searches.

Grits' biggest concern with license plate readers is with indefinite data retention. Some jurisdictions limit data retention of information about non suspects to as little as 48 hours or just a few days. Texas, however, doesn't regulate data retention from license plate readers. What you don't want is for the government to keep such location data forever, as Austin PD appears to be doing. It's fine to use such devices to hunt for stolen cars, but there's no reason to keep data on the location of the 99.99% of cars that aren't stolen. And there's certainly no call for setting the devices up on the side of the road to gather data indiscriminately, independently of any enforcement action. Emerging research has already shown that location data is the ultimate biometric because no two things (hence no two people) can be in the same place at the same time and travel patterns are unique. So location data can be individualized with only a few data sources and, combined with other public "Big Data" and social media sources, reveal an enormous amount about drivers, whether they're driving a stolen car or not. That leads us down a path toward invasive mass surveillance in public spaces that would have been considered science fiction a generation ago.

License plate readers also could and inevitably will be used inappropriately as a revenue generation tool. Thanks to overcriminalization, roughly 10% of adult Texans at any given time have a warrant out for their arrest, mostly for traffic violations. Using license plate readers to generate money from ticket roundups would be technically legal but would externally appear for all intents and purposes like the tactics of some Orwellian, totalitarian state. Indeed, the Texas Electronic Privacy Coalition considered trying to include license plate readers in the warrants-for-location data legislation aimed at cell providers this spring, but the issues were complicated and we determined it needed to be a stand-alone bill. By 2015, perhaps we'll have a clearer idea of precisely how best to regulate this technology. The privacy implications are severe.

It does sound like these aren't being used widely in Austin at the moment, but not for lack of trying:

The department’s lone portable reader has been in and out of
commission in recent weeks, Williams-Dennis said, so patrol officers are
still mostly doing what they’ve done before when checking license
plates — manually entering the plate on their computer or asking
dispatch to do it for them. ...

In 2009, with the blessing of the City Council, the department
purchased two mounted readers, which are no longer in service after the
vendor went out of business.

By contrast, a recent ACLU report estimates the city of Sugar Land scans 413,000 license plates per month. See the results of ACLU's open records request (pdf) for that city. In September 2012, the city of Grapevine captured 14,547 plates per day, said the report. The DEA has installed license plate readers along highways in Texas and other states bordering Mexico. And of course, many dozens of Texas agencies subscribe to a private service that accumulates license plate reader data from public and private sources.

What can be done? Locally, probably nothing. Maybe things will change when the Austin city council switches to single member districts after next year, but this is one of those issues where historically - because law enforcement in Austin is so politicized and the city council is in the pocket of the police union - it would be nearly impossible to effect change locally. Plus, there are too many jurisdictions using the technology to battle it out at the local level. The best bet is to wait till 2015 to get the Lege to regulate or severely limit the practice. Let me know in the comments what you think such legislation should look like and any specific issues that should be addressed. There are perhaps 15-16 months to craft draft legislation before it's time to work on getting it filed.

Tuesday, July 23, 2013

The Immigration and Customs Enforcement agency pulled its detainees out one Texas jail and bailed another one out. The blog Texas Prison Bidness brings word that ICE has sent 200 detainees to the vacant wing of the McLennan County Jail operated by LaSalle Corrections (see more on them). The facility, built on spec to house contract prisoners, holds 816 inmates total so at 200 they're about a quarter full. Still, at least it's generating some revenue.

The aftermath of the Michael Morton exoneration has cost Williamson County more than half a million dollars, reported the Austin Statesman (July 22), mostly in legal fees surrounding the court of inquiry but also for the prosecution of the real killer, Mark Norwood, whose DNA was found at the scene on a belatedly tested bloody handkerchief. Reported the paper:

[Rusty] Hardin submitted a bill of $365,045.13, which included $39,587.63 for
expenses such as Fed Ex, copying, mileage and hotels, [assistant auditor Julie] Kiley said. The
remainder of the bill was for 1553.50 hours of legal service, she said.
Sturns only authorized that the county pay $339,492, she said.

Kiley said the judge didn’t explain why he adjusted the bill down, but such adjustments aren’t unusual in criminal cases. ...

The county’s previous legal costs of more than $158,000 include
$145,879.84 for the Norwood trial and $12,780 for judge’s fees,
transcripts and court reporting for the court of inquiry, Kiley said.

Considering the state paid nearly two million dollars to Morton in a lump sum and that Texas taxpayers created a lifetime annuity for Morton in a like amount, quite honestly, it seems to me the county is getting off light. One of Morton's unrequited reform suggestions was for counties to bear at least part of the burden for compensating exonerees since local officials were fundamentally responsible for most false convictions. That idea didn't move forward, but it would be folly to think the county would get off scot-free while Judge Ken Anderson, who prosecuted Morton and was arrested this spring for allegedly secreting exculpatory evidence in the case, remains on the bench. For that matter, "If a trial is held, the county will face more expenses."

Monday, July 22, 2013

Were you aware that the Texas Legislature this session legalized switchblade knives? Me either, but HB 1862 by Dutton removed switchblades from the list of prohibited weapons in Chapter 46.05 of the Penal Code. However, the Penal Code at 46.01(6) still lists under the definition of "illegal knife" any knife with a blade over five and one-half inches; any hand instrument designed to cut or stab another by being thrown; a "dagger, including but not limited to a dirk, stiletto, and poniard"; a Bowie knife (scandalous in Texas, no?); a sword; or a spear. So a spring-loaded knife with a blade under 5.5 inches is legal so long as it's not a dagger, dirk, stiletto or poniard. Got it?

Where else are you going to get that kind of information? Thanks to the generosity of Grits donors, on Friday I attended the biennial legislative update from the Texas District and County Attorneys Association, which kicked off a statewide tour giving CLEs about changes in criminal law this past session. (To contribute to this sort of coverage, hit one the Pay Pal button in the right-hand column. Between $125 for the training plus a few recent research and travel expenses, Grits' blog coffers are running low.)

TDCAA's Shannon Edmonds put up a telling slide depicting the number of new crimes created by the Legislature each session (excluding mere penalty "enhancements," or increased penalties for existing crimes):

2001: 34

2003: 23

2005: 49

2007: 50

2009: 40

2011: 53

2013: 41

New crimes this year include "Uprooting seagrass plants" (Class C misdemeanor) and "performing device maintenance services without a license (Class B misdemeanor, Class A for a subsequent offense). Drone fans will recall the new prohibition on "possession, display, disclosure, distribution or use of image captured by unmanned aircraft" (with many exceptions). And it's now an offense for motorcyclists to carry a passenger if their bike doesn't have footrests and handholds. The list goes on.

In addition to 41 new crimes, TDCAA counted 25 new criminal penalty enhancements, including."criminal slander or libel of a savings bank" (now a state jail felony). Perhaps a more important enhancement was to boost the penalty for witness tampering in family violence cases to a second or third degree felony, depending on the circumstances. That one could get used far more often than anyone would ever slander a savings bank. Making, selling or altering a car's airbag without proper credentials can
now be a first degree felony if death results. Failure to stop and
render aide is now a second degree felony if the person dies. And while
prostitutes may be treated more gently under diversion programs the
Legislature approved, criminal penalties for pimps were increased all
the way up to a first degree felony (5-99 or life) if one or more
prostitutes was under 18.

"Horror stories" drive policymaking on criminal justice, prosecutors
were told, so if they want their bills to pass they should look
for horror stories that exemplify the need for them the way the Michael Morton case
drove criminal-discovery reform. (Morton, incidentally, has agreed to be the keynote speaker at TDCAA's annual conference.) For a moment, the group thought the
Kaufman County prosecutor murders were going to become that sort of
high-profile, policy changing case, they said, but the media and legislators lost interest when it
turned out the perpetrator was a former Justice of the Peace and not a
member of the Aryan Brotherhood or a Mexican drug cartel. The Legislature did make birth dates and home addresses confidential on certain public documents for prosecutors and peace officers but not much else was done in direct response to those events, they said.

One horror story from half-a-continent away that did gain traction was the school shooting episode in Connecticut. In response, the Texas Legislature created a new system of armed, undercover school marshals. But the idea is already running into resistance, said Edmonds, because insurance companies don't want to cover school districts employing said marshals, apparently fearing that an anonymous, armed adult on campus might get shot by police responding to a chaotic active shooter situation. I hadn't followed this development; only time will tell how it plays out.

Much attention was paid to the so-called "Michael Morton Act" mandating open files by prosecutors. Kepple said the bill was never run through the Legislative Council so as written it's "a little boogered up." The bill essentially codifies Brady v. Maryland, they said, requiring the state to document what it does and doesn't give to the defense. The defense bar, in turn, can't share that information with third parties, including the media, before it's submitted into evidence. There was some discussion of the lack of penalties if defense attorney abuse open-file privileges. Before this law, prosecutors could threaten to withhold discovery in future cases if defense lawyers released confidential information. Now that's a hollow threat. The law requires disclosure. If they can find the right "horror story," perhaps prosecutors will seek penalties next session for defense attorneys who release information without proper authority. OTOH, Kepple pointed out, there are also no penalties for prosecutors who don't comply with the law, so it's possible they'd be better off leaving well enough alone.

They mentioned a couple of bills familiar to Grits readers: One
expanding access to habeas corpus writs in junk science cases and
another requiring warrants for cloud-based email and other digital
content. I'm still pretty pleased about both of those.

Judges must now formally ask the state whether they've received a victim impact statement in cases where they're authorized. Apparently 2/3 or more of the time they'll be told "no." Most victims decline to provide them, said Edmonds. Victims can also decline to be contacted by the defense in capital murder cases as part of "defense initiated victim outreach," which Kepple described as a predator "in sheep's clothing." The new statute says victims may designate someone at the prosecutor's office to interact with the defense counsel, though it's not required. If this option is widely used, I bet it's because prosecutors push for it, not victim families.

Edmonds chided the Legislature for continuing to create human
trafficking offenses when few if any prosecutors in the field are
running across those sorts of cases in their regular practice. He asked
the audience if anyone had used the statute and no hands visibly rose. There's a new reporting requirement for prosecutors on human trafficking and a new civil cause of action.

Grits has been attending these post-session TDCAA wrap ups for several sessions and I'll give them credit for consistency. When Texas passed its much ballyhooed Life Without Parole (LWOP) legislation for adult capital cases in 2005 - a bill Grits disliked at the time - TDCAA's Edmonds and Rob Kepple opined that the Legislature could not prevent themselves from expanding the use of the penalty to non-capital crimes, predicting that LWOP sentences would result in a sort of mission creep beyond just its role as an alternative to the death penalty.

That turned out to be prescient. Though LWOP was pitched as an alternative to the death penalty, in 2007, Kepple pointed out, the Lege added LWOP on a second conviction for continuous sexual abuse of a child. In 2011, they created an LWOP punishment for human trafficking and second-offense agg-sex assault. This year they added sexually violent offenses against a child under 14. Now that the penalty exists, Kepple pointed out, politicians of all stripes inevitably will seek to apply it in more circumstances. Though he didn't say so, this sets the state up for our grandchildren to pay for constitutionally required medical care for elderly prisoners the state can't release 40-50 years down the line. It also gives prosecutors enormous leverage to coerce plea bargains in cases where the penalty may be applicable. Along the same lines, the Legislature created several new mandatory
minimums including for organized criminal activity and injury to a
child, increasing the amount of time before offenders become parole-eligible. One can't expect TDCAA to complain about prosecutors being handed a bigger club, but implicit in Kepple's comments was a sentiment that it's probably not a wise policy choice: Texas' criminal penalties have long been tough enough.

Grits may have more tidbits to come from the "Legislative Update" manual that accompanied the program but those are the highlights from my notes.

UPDATED/CORRECTED: This post was updated July 22 with information from a conversation with Jim Hurley from the Texas Juvenile Justice Department. He wanted Grits to iterate that the decision to close the Corsicana unit was being made directly in response to Rider 35 in the new state budget which prohibits the agency from expending money on more than five secure facilities after January 1st. Along with that mandate, they cut TJJD's budget by $23 million, he emphasized, so some unit had to close. Corsicana was chosen in part, he said, because the unit needs the most upkeep and rehab. The board must forward its recommendation to the Legislative Budget Board by September 1st, so their final recommendation could be made either on July 26, as reported by The Corsicana Sun, or at the board's August meeting.

Updated Original Post: Grits recently received several emails from front-line employees at Texas Juvenile Justice Department facilities about pending closures at two halfway houses - the Beto House in McAllen and the Turman House in Austin and the Ayres House in San Antonio - and the mental health unit in Corsicana. There had already been an earlier report that the Corsicana facility would be shuttered by Jan. 1, 2014, but I hadn't seen news of halfway house closures reported before now. TJJD held a board meeting on July 15 where they discussed closing the Corsicana unit and the agency is reportedly scheduled to finalize the decision by the end of the week, on Friday, July 26. One of Grits' informants via email declared that, "Beto house is confirmed, Corsicana is supposed to be closed but we heard
from Griffiths himself that people are protesting Corsicana's closure and
it may not go through."

Employees were notified on Monday morning that Turman House in Austin would be closed. Jim Hurley said that decision was made because, with Travis County sending fewer kids to institutions, fewer kids are returning and thus the need for a halfway house diminished. Hurley seemed more sanguine than Grits readers that the board would stick by its recommendation to close Corsicana. He also confirmed the Beto House closure, pointing out there are two other TJJD halfway houses in the Valley to serve that area.

Grits asked Hurley specifically what would happen to mentally ill kids presently housed at Corsicana. Are other facilities prepared to handle them, I asked - are there sufficient mental health resources, personnel, etc., at the other units? Hurley said there are "several options" on which he declined to elaborate and a "number of factors" which he did not name. "We do have some options under consideration that are not fully developed and that the agency is not ready to discuss," he said. Suffice it to say, even when pressed off the record, any current plans for how to plug that gap in services are sketchy and preliminary at best. Mike Griffiths and crew had better be rapidly working on a better solution than "we're figuring it out," which is the essence of the response I got. He did say the agency is not currently considering privatization for that population, which is good news as long as it lasts.

Few if any reporters attend TJJD board meetings anymore now that the 2007 sex scandals have subsided - usually none if the Statesman's Mike Ward doesn't go - and in fact the only press account I've seen of last week's meeting was from Janet Jacobs at the Corsicana Sun. She did not mention the halfway houses but corroborated staff reports that the final decision on the Corsicana unit is still pending. Her latest story concluded, "The LBB has final approval of any changes, and a recommendation from the TJJD has to be given the LBB by Sept. 1. The TJJD board is expected to vote on a recommendation on July 26. Any closures have to be done by January 1, 2014." Grits emailed TJJD's media manager Jim Hurley for more details on pending closures and to request a copy of the evaluation mentioned in this article recommending the Corsicana Unit's closure. I'll update this post when I get them. MORE: Here's a link to the brief evaluation, which provides only a handful of bullet points regarding pros and cons of closing various units.

Rumors swirled for months that Corsicana could be on the chopping block, so this comes as no great surprise. But IMO if they're going to close another large unit it should probably be Evins. Despiterepeatedinterventions, those folks can''t seem to pull their act together. Plus, the Corsicana unit presently is where TJJD keeps mentally ill juvenile inmates. Maybe the agency is prepared to provide those services elsewhere (they'd better be), but it's not obvious to me that's the case.

The
LBB has final approval of any changes, and a recommendation from the
TJJD has to be given the LBB by Sept. 1. The TJJD board is expected to
vote on a recommendation on July 26. Any closures have to be done by
Jan. 1, 2014. - See more at:
http://corsicanadailysun.com/local/x596947851/State-hears-Corsicana-s-appeals-on-treatment-center-closure#sthash.uT4Nl5ue.dpuf

The TJJD announced earlier this month it planned to close the facility.
Local leaders are addressing the TJJD staff at today's public hearing being held at the Crowne Plaza Hotel in Austin.
Transcripts from today's public hearing will be presented to the full
TJJD board at its meeting on July 26, when a final decision on
recommending its closure is expected.
- See more at:
http://corsicanadailysun.com/local/x596947489/Testimony-underway-in-State-Home-public-hearing#sthash.5PfiyrUx.dpuf

The TJJD announced earlier this month it planned to close the facility.
Local leaders are addressing the TJJD staff at today's public hearing being held at the Crowne Plaza Hotel in Austin.
Transcripts from today's public hearing will be presented to the full
TJJD board at its meeting on July 26, when a final decision on
recommending its closure is expected.
- See more at:
http://corsicanadailysun.com/local/x596947489/Testimony-underway-in-State-Home-public-hearing#sthash.5PfiyrUx.dpuf

The TJJD announced earlier this month it planned to close the facility.
Local leaders are addressing the TJJD staff at today's public hearing being held at the Crowne Plaza Hotel in Austin.
Transcripts from today's public hearing will be presented to the full
TJJD board at its meeting on July 26, when a final decision on
recommending its closure is expected.
- See more at:
http://corsicanadailysun.com/local/x596947489/Testimony-underway-in-State-Home-public-hearing#sthash.5PfiyrUx.dpuf

Sunday, July 21, 2013

AP had a story last week (July 14) about a company called Aramark, a private food vendor specializing in correctional settings. The article opened:

A private vendor in line to begin feeding roughly 100,000 prison
inmates in Ohio and Michigan has a track record of billing for food it
doesn't serve, using substandard ingredients and riling prisoners with
its meal offerings, past audits in several states show.

But some states say Philadelphia-based Aramark Correctional Services has performed well.
The
audits in Ohio, Florida and Kentucky found Aramark charged states for
meals not served, changed recipes to substitute cheaper ingredients and
sometimes skimped on portions.

A 2001 audit by then-Ohio Auditor
Jim Petro found a verbal amendment to Aramark's two-year contract led
the state prisons department to pay Aramark for serving almost 4.5
million meals rather than the 2.8 million meals it actually served. That
added $2.1 million to the contract cost.

An internal audit by
Florida's prisons department in 2007 concluded Aramark's practice of
charging the state per inmate rather than per meal created "a windfall
for the vendor" after a large number of inmates stopped showing up for
meals, reducing company costs by $4.9 million a year. The review found
the company was paid for some 6,000 meals a day that it didn't serve.
Aramark stopped serving Florida's prison meals in 2009.

Kentucky's
state auditor launched a review of Aramark in response to the 2009
prison riot at Northpoint Training Center sparked over food issues.
Auditor Crit Luallen's 2010 report found Aramark overbilled the state by
as much as $130,000 a year, charging for the meals of as many as 3,300
inmates that were shown through head counts not to be incarcerated.

Besides
payments for unserved meals, the audits found Aramark sometimes
substituted cheaper ingredients — receiving inmate-grown food against
contract terms or substituting less expensive meat products, for example
— without passing savings on to taxpayers. During an Ohio site visit,
inspectors reported witnessing a "near riot" at breakfast when Aramark
adhered strictly to its contractual portion sizes.

In general,
states still saved money overall — the primary enticement behind the
latest privatization efforts in Ohio and Michigan.

The Company is a party to various legal actions and investigations including, among others, employment matters, compliance with government regulations, including import and export controls and customs laws, federal and state employment laws, including wage and hour laws, immigration laws, human health and safety laws, dram shop laws, environmental laws, false claim statutes, minority business enterprise and women owned business enterprise statutes, contractual disputes and other matters, including matters arising in the ordinary course of business.

Even for a big company, that's quite a list of legal actions to be embroiled in at any given time. In addition to prisons and jails, Aramark serves "healthcare facilities, school districts, colleges and universities, sports, entertainment and recreational venues, conference and convention centers, [as well as] national and state parks," said its latest 10-K.

See a related item from Prison Legal News about Aramark and its lead competitors in the prison food privatization market, a parasitic grotesquery of a business model if there ever was one.

Grits is aware that some readers are sick of hearing about cell-phone location tracking. Those complaining should have done more to help pass Rep. Hughes and Senators Hinojosa and Estes' legislation this spring - if that had become law I'd have shut up about it about it by now! Instead, y'all get two more years of the topic while Grits preps for a renewed push in 2015. Lucky you. ;) After all, if Texas had already passed our bill, I'd have no need to highlight a recent New Jersey state Supreme Court opinion (pdf, 43 pages) requiring a warrant for cell-phone location data in the Garden State. That court found that, even though the relevant language is "nearly identical" to that in the Bill of Rights, privacy rights under New Jersey's state constitution are "not always coterminous" with SCOTUS rulings and in this case afford additional protections. Still, IMO the New Jersey court made a valid Fourth Amendment argument, too, even if the US Supreme Court would have to revisit and revise a couple of ill-considered precedents from the 1970s in order to adopt similar logic. From the opinion:

When people make disclosures to phone companies and other providers to use their services, they are not promoting the release of personal information to others. Instead, they can reasonably expect that their personal information will remain private. Using a cell phone to determine the location of its owner is akin to using a tracking device and can function as a substitute for 24/7 surveillance without police having to confront the limits of their resources. It also involves a degree of intrusion that a reasonable person would not anticipate. Details about the location of a cell phone can provide an intimate picture of one’s daily life and reveal not just where people go – which doctors, religious services, and stores they visit – but also the people and groups they choose to affiliate with. That information cuts across a broad range of personal ties wit h family, friends, political groups, health care providers, and others. In addition, modern cell phones blur the historical distinction between public and private areas because phones emit signals from both places.

Bingo! The New Jersey court unanimously stepped up to say what Justice Sonia Sotomayor suggested in a lone concurrence in US v. Jones: That it's time to reconsider the "Third Party doctrine" created by the courts as an exception to the Fourth Amendment when personal information is shared with others in routine business transactions. Thurgood Marshall presciently warned of the dangers such "special needs" exceptions pose. The example of German politician Malte Spitz shows how much information can be garnered just by combining someone's personal location data with their Facebook and Twitter accounts. He famously won access to his cell-tracking data through litigation and teamed up with a newspaper to generate a creepily detailed, annotated map of everywhere he'd been.

Once aggregated with other "Big Data" sources, commercial databases as well as self-disclosed data scraped from social media, etc., such personal, en masse tracking makes George Orwell's novel 1984 seem quaint by comparison. Because knowledge (and therefore data) is power, the use of personal data has metastasized among police and corporate powers in the 21st century. However, as the New Jersey Supreme Court opined, "No one buys a cell phone to share detailed information about their whereabouts with the police." (Is that why you bought yours?)

Later in the opinion, the New Jersey court evinced a deep understanding of the bind in which existing Fourth Amendment doctrine places average citizens. "Just as customers must disclose details about their personal finances to the bank that manages their checking accounts, cell - phone users have no choice but to reveal certain information to their cellular provider. That is not a voluntary disclosure in a typical sense; it can only be avoided at the price of not using a cellphone." "Modern cell phones," observed the court, "blur the historical
distinction between public and private areas because cell phones emit
signals from both places."

Grits has been heartened that several other states - so far Montana, Missouri and Maine, that I know of - have legislatively required a warrant for cell-phone location data, but New Jersey is the first state high court that I'm aware of to do so. Josh Gerstein at Politico summarized the New Jersey case thusly:

The case centers around a man suspected of burglary in 2006.
Searching for him and his girlfriend, whose safety they were concerned
about, police got location information from his provider, T-Mobile, on
three occasions in one night. Detectives found the suspect at a motel
based on one of the location traces, and they also found stolen property
and marijuana. He pled guilty to the charges, but was allowed to appeal
a ruling on a motion to suppress the evidence collected that night.

Lamenting that federal court and U.S. Supreme Court cases on
electronic location tracking are divided and unclear on expectations of
privacy for cell phone location, the state court focused on the New
Jersey Constitution instead of the Fourth Amendment in its reasoning.
State law makes clear that information given to third-party services in
order to obtain service is still subject to an expectation of privacy,
the court found, meaning police must get a warrant based on probable
cause before seeking the information, aside from emergency
circumstances.

Writing for the seven-judge court, Chief Justice Stuart Rabner said
that the prevalence of cell phones today only makes the privacy
expectation more important.

“Disclosure of cell-phone location information, which cell-phone
users must provide to receive service, can reveal a great deal of
personal information about an individual. With increasing accuracy, cell
phones can now trace our daily movements and disclose not only where
individuals are located at a point in time but also ... with whom they
choose to associate," Rabner wrote. "Yet people do not buy cell phones
to serve as tracking devices or reasonably expect them to be used by the
government in that way. We therefore find that individuals have a
reasonable expectation of privacy in the location of their cell phones
under the State Constitution."

Since New Jersey's high court ruled under their state constitutional protections, it's worth asking, could the Texas Court of Criminal Appeals construe our state constitution - irrespective of federal requirements - to require law
enforcement to secure a warrant to access cell-phone location data? Here's the relevant language in Texas' foundational document, found in Article I, Section 9: "The people shall be secure in their persons, houses, papers and
possessions, from all unreasonable seizures, and no warrant to search
any place, or to seize any person or thing, shall issue without
describing them as near as may be, nor without probable cause, supported
by oath or affirmation."

Setting aside for a moment any pessimism one might harbor about the pro-prosecution bent of the current presiding judge and several long-timers who consistently vote with her on the Texas Court of Criminal Appeals, in this non-lawyer's opinion Texas' constitution may not provide quite as explicit an hook. The US Fourth Amendment and New Jersey's constitution use the word "effects," while the Texas constitution replaced that word with "possessions." One can easily argue my cell-phone location data are part of my "effects." Are those data my "possession"? Really, it's the cell-phone company that possesses the data. Perhaps, then, it's arguable that a warrant should be required to get it from them? If after Citizens United we've decided to treat corporations as people, after all, then perhaps my cell-service provider has Fourth Amendment rights, too? I'm spitballing here. Who knows? A lot would depend on the posture of whichever case made it before the court, not to mention who replaces three erstwhile moderates on the CCA who're leaving the bench next year. This is all wide-open, unsettled law, which is another reason it would have been great for the Texas Legislature to consider the issue comprehensively and lay down some ground rules.

Saturday, July 20, 2013

After the Houston Chronicle published a story about a directed acquittal following an alleged Brady violation (withholding exculpatory evidence) by former prosecutor Jon Hall in a Galveston District Court, Grits linked to the article and lamented that the state bar had taken no action, basing that on the fact that no public reprimand had been issued more than two years after the event. My bad.

While it's true that as of yet there has been no disciplinary action, a source in Galveston informs me that, "The State Bar IS going after his license. They suffered a setback
in a discovery hearing. They are appealing and I think they will win. [Mr. Bledsoe's] arrest was expunged. The DA used that as an excuse to say they
cannot turn over their file, which contains evidence of the
prosecutor's [alleged] misdeeds." Grits must apologize for jumping to the conclusion that the state bar sat on their hands on this one: Sounds like they're at least taking the shot, which is all you can ask.

In a related update: Ask and ye shall receive! Grits mentioned earlier that it'd be interesting to read the underlying transcripts in the case, so many thanks to the long-time reader who passed them along. (This is model reader behavior, people: Please replicate it widely!) For those interested in more detail on the case, here's the portion of the trial transcript where the court and defense counsel first raise with Mr. Hall a 911 recording that contradicts key witness testimony the prosecution presented to the jury without reservation. Here's the part where Judge Susan Criss tells the jury what happened and issues the directed acquittal. And here's a copy of a deposition of the defense attorney, Jyll Rekoff, providing a detailed account of the events in question and accusing him of similarly withholding a 911 recording from defense counsel in an earlier case. Both the judge and defense attorney in open court said this wasn't the first time Mr. Hall - who was a prosecutor in Brazoria County for ten years before moving to the Galveston DA's office - allegedly failed to disclose evidence in their cases.

As it turns out, the revelation about withheld evidence wasn't due to an extraordinary
defense investigation, though the defense attorney in the case seems to
have done a good job. Instead, a cop testifying on the stand referred to
a witness statement and a 911 recording that had not been turned over
to the defense. Defense counsel told the judge she'd never seen those statements and got hold of copies that evening. On the 911 recording the state's star witness - who later
picked the defendant out of a photo lineup - said the perpetrators wore
ski masks and she couldn't even discern their race. That anyone would even show her a photo lineup after that - much less present the results to a jury without mentioning the 911 call - truly beggars belief.

Part of me would like to think this episode represents a sort of death rattle for behavior from the bad old days. The events took place before Texas implemented improvements to eyewitness ID procedures. And open-file policies mandated in this year's Michael Morton Act should reduce the sort of behavior alleged in Galveston. Over time, those changes should help a lot in similar situations. Moreover, the attitudes of the judge and the state bar are heartening - those who're supposed to exercise oversight did so in this case, or in the case of the state bar, at least tried. Still, my more cynical side accepts that as long as there are competitions there will be people who cheat to win. One can teach ethical behavior but it's more difficult to instill it.

Friday, July 19, 2013

State Rep. Harold Dutton this week filed a resolution to impeach state District Judge Elizabeth Coker from Polk County for allegedly texting advice and suggested lines of questioning to prosecutors in her court during trial. See coverage from Your Houston News. Hard to say what are the chances of it passing at this late hour, but it's also hard to imagine who would stand up at the Legislature to defend such behavior after they've spent half a year debating the Michael Morton Act, innocence commissions, etc.. We'll see.

Thursday, July 18, 2013

At last week's Texas Forensic Science Commission Roundtable (an event co-sponsored by the Court of Criminal Appeals' Criminal Justice Integrity Unit), presenter Norman Reimer from the National Association of Criminal Defense Lawyers offered a preliminary discussion of a project publicly announced today - a joint review between the US Justice Department, the national Innocence Project out of New York, and the NACDL of cases where potentially flawed microscopic hair analysis may have been introduced as evidence and produced false convictions. According to Reimer, out of 310 DNA exonerations nationally, 72 of them (23%) included faulty microscopic hair analysis, often layered on top of other flawed evidence as corroboration. I'd not seen that figure, but it's repeated in the press release below. That would make hair microscopy perhaps the most significant source of forensic science error in DNA exoneration cases. You can imagine that, layered on top of a mistaken eyewitness, such forensic corroboration could be very powerful testimony.

Unfortunately, this partnership will only review cases prosecuted in the federal system. However, there are many technicians at the state and local levels, most if not all of whom were taught by the same trainers as the FBI, said Reimer - whose cases won't be included in the federal review. Indeed, so far the working group doesn't even have a list of state and local technicians who the FBI trained on microscopic hair analysis. Once those names are available - and please, somebody involved in that project let's make that happen! - then states can begin conducting their own reviews of flawed testimony in state-level criminal cases, which are likely far more numerous and may have continued to be used in cases beyond the year 2000 when DOJ abandoned the technique in favor of DNA analysis.

Perhaps the Forensic Science Commission needs a formal complaint to stick its nose into this business, though arguably the bill that just passed expanding their jurisdiction (SB 1238 by Hinojosa) would allow them to investigate of their own accord after September 1st. Either way, the federal review won't get to cases in state district court and the FSC seems uniquely positioned to launch a parallel review of hair microscopy in state-level cases.

Grits this morning listened online to a public hearing of the Texas House Criminal Jurisprudence Committee on Monday regarding legislation by Rep. Harold Dutton (HB 49) requiring a warrant for body-cavity searches. The Governor has not added the bill to "the call" so as things stand the legislation cannot become law, but the hearing raised the issue's profile. Interestingly, the cadre of folks testifying in favor of the bill seemed to be mostly students. The one who received the most questioning from the committee regarding constitutional privacy principles was a high-school kid in his Sunday-go-to-meeting suit who couldn't name a Supreme Court case to save his life. Too bad, Grits would have loved to answer Rep. Matt Schaefer's questions about the origins and current state of constitutional privacy protections under the Fourth Amendment. Some other time.

The text of Dutton's bill would require warrants for body cavity searches of any "person arrested or detained during the investigation of a criminal offense unless a magistrate has issued a search warrant ... authorizing the body cavity search." As written, that would not only include body-cavity searches on the side of the road, like those performed by DPS troopers that spawned the bill, but also searches of defendants held in the jail pretrial, potentially overriding legislatively, for Texas, a recent US Supreme Court decision holding strip searches constitutionally allowable for all arrestees.

Steve McCraw from DPS pointed out that county jails can presently perform cavity searches without a warrant. The practice is against DPS policy, he said, and officers who performed such searches in the field have been terminated. "If we find others we'll terminate them as well," he told Rep. Schaefer. In response to questioning from Rep. Terry Canales, McCraw said DPS changed its policy within "the last couple of weeks" to specifically clarify that body cavity searches are not allowed. That shouldn't have been necessary, said McCraw, because you shouldn't have to write a policy telling troopers not to violate the law (referring to the Fourth Amendment), but the new policy would make that clear.

Though not much discussed at the hearing, the bill as written would also side with the four-member minority in a US Supreme Court case from 2012 that narrowly approved strip searches in detention facilities for minor offenses including traffic violations. I'm always glad to see such "legislative override" bills on Fourth Amendment topics. The courts have so denuded it with exceptions that, if we rely only on the judiciary for protection, the Fourth Amendment has become all but an empty gesture outside the confines of the home. But legislators, just like judges, take an oath to uphold and defend the Constitution and IMO have an equal obligation to bolster and protect Fourth Amendment rights through legislation as judges do to uphold it in the courtroom.

Though it may not seem like a labor issue, the only entities signed up in opposition to requiring warrants for body cavity searches were the state's two largest police unions - the Combined Law Enforcement Associations of Texas (CLEAT) and the Texas Municipal Police Association (TMPA) - both of which registered against the bill. I've never understood why those groups feel the need to promote regressive policy stances like roadside anal and vaginal searches when there are plenty of wage and working conditions topics on which they could and should focus. Protecting the right of a cop to stick his or her gloved finger up my behind is not exactly improving working conditions. I would have understood county sheriffs opposing the bill (which they didn't), but unions I just don't get.

Tuesday, July 16, 2013

The Houston Chronicle brings word of a remarkable case of prosecutors allegedly woodshedding an eyewitness and withholding exculpatory evidence ("Innocent Texas City man wants $3 million after 10 months in jail," July 15). The conduct was so egregious the judge ordered a directed verdict in favor of the defendant. Robert Stanton's story opened:

A Texas City man who spent 10 months in jail for a crime he did not
commit has filed a $3 million federal lawsuit against officials in
Galveston County and Texas City.

Joshua Bledsoe was released from custody in June 2011, when state District Judge Susan Criss issued a direct verdict in his favor. The acquittal was ordered on grounds that former Assistant District Attorney Jon Hall and the DA's Office withheld exculpatory evidence, according to the lawsuit filed Feb. 21, 2013.

A directed acquittal specifically because of concealing exculpatory evidence is a rare bird indeed, in part because evidence concealed isn't available at trial to contradict the prosecution's case. It's usually discovered long after the fact when the damage has been done. Bledsoe's attorney must have done a fine investigation to pull that out of a hat. Here are the specifics of the alleged Brady violation, again from the Chronicle:

According to the original petition, Bledsoe's attorney Taft L. Foley II obtained a 911 tape with eyewitness Tina Mullins, who told the dispatcher that the suspects were wearing ski masks. She later identified Bledsoe in a photographic lineup.

The
lawsuit charges that Texas City police and the DA's Office pressured
Mullins into identifying Bledsoe. Mullins is not a party to the lawsuit.

"The
defendants deliberately and maliciously caused the prosecution to
commence by deliberately and intentionally fabricating some evidence, by
deliberately and intentionally withholding some critical favorable
evidence and by deliberately and intentionally mischaracterizing some
critical evidence in their possession, custody and control," the lawsuit
states.

Where's the state bar on this, one wonders? The directed acquittal two years ago specifically based on grounds of withholding exculpatory evidence ought to make the disciplinary committee's job pretty easy, but according to the state bar website Jon Hall has never been sanctioned.

Here are a few odds and ends that didn't make it into full blog posts but deserve readers' attention:

Judge shot to death in Corpus Christi
A Nueces County district judge was found shot to death in his chambers. Few details so far on possible perpetrators, motive, etc., or even whether it may have been a suicide. ¿Quien sabe? Grits would caution the press to beware of premature speculation. If the murder of the Kaufman County DA, his wife and another prosecutor earlier this year taught us anything about such high-profile episodes, it should be not to jump to conclusions. The press spent weeks hypothesizing that the Kaufman murders were attributable to everyone from the Aryan Brotherhood to Mexican drug cartels before it allegedly turned out to have been a former elected official angry about personal, political and legal disputes. Let's not repeat that pointless cycle of error and guesswork before the salient facts come out. UPDATE (7/17): Authorities are now calling the death a suicide.

Mental health funding got boost
The Fort Worth Star-Telegram has a story detailing increases in mental health and drug treatment funding from the 83rd Texas Legislature. Unfortunately, the Lege did not direct any of it specifically to help solve competency restoration backlogs.

Fundamentals of private prison giant weak
Grits recently mentioned
the report on Corrections Corporation of America from Anonymous
predicting their economic demise. Well, here's another argument for
shorting their stocik, this time from The Motley Fool.

Indoor cell-phone tracking
Stores are using indoor cell-phone tracking to generate data on consumers. The tactic also highlights how rapidly cell-phone location data is becoming super-accurate thanks to the proliferation of towers, antennae and femtocells.

Constitutionality and the meaning of metadata
Here are two perspectives on why collection of cell-phone metadata should be unconstitutional: One from libertarian constitutional expert Randy Barnett and another analyzing why Thurgood Marshall thought the entire "special needs" doctrine on which the program is based was bad law in the first place. Here's a basic primer on the current state of Fourth Amendment jurisprudence related to "metadata." For those who don't understand precisely what the government gets when it acquires "metadata" from your phone calls, this blog post lays it out nicely. MORE: At the Volokh Conspiracy, Orin Kerr makes the case for allowing NSA phone snooping under existing (IMO grossly flawed and denuded) Fourth Amendment jurisprudence. So much about that post irked me Grits may have more to say on the subject later. AND MORE: Randy Barnett responds to Kerr. FWIW, my gripe isn't with Kerr's analysis of 40-year old case law, which is accurate as far as it goes, but his omission of political responses to the cases he cites and his implicit normative assumption that those cases from the '70s should be adapted and expanded to allow gathering data prospectively about millions of non-suspects

Border wall repeats one of 'history's great blunders'
So argue writers from The Atlantic, tracing the history of border walls and the fall of empires from China to the Roman Empire to Russia and Great Britain. Communication and partnerships are far more effective than physical barriers, which is why I'm glad to see the new mayor of Monterrey visiting Texas cities to exchange ideas about crime fighting efforts.

The Great Writ diminished
Here's an interesting item articulating how habeas corpus has been emasculated by restrictive legislation under the federal system. With a handful of exceptions, one could make the same case for state-level habeas writs, certainly in Texas. Sen. John Whitmire's SB 344 this session was one of the first expansions of habeas power in memory - nearly all legislation restricts its use rather than enabling it. Unfortunately, like much habeas discussion, the article is too focused on the death penalty. The real shame is that attempts to restrict habeas in death cases had reduced its value across the board, IMO with unforeseen, negative consequences.

Monday, July 15, 2013

Grits intentionally boycotted (to the extent humanly possible) press coverage of the George Zimmerman trial and so had not realized that Dr. Vincent Di Maio, the chairman of the Texas Forensic Science Commission, was a key witness for the defense among the dueling experts presenting evidence at trial, contradicting many of the findings of Flordia medical examiners testifying for the state. Find below the jump an excerpt from the Business Insider identifying key elements of Di Maio's testimony:

Sunday, July 14, 2013

Prison Legal News has an extended article on problems at crime labs providing an overview of challenges facing many forensic fields, including several Texas examples that will be familiar to Grits readers. Good stuff. Some of the conclusions are perhaps overstated but overall the story admirably lays out the string of new challenges facing crime labs that few policy makers had seriously considered before just a few years ago. Here are a few summary paragraphs to give you a taste, but those interested should read the whole thing:

These types of problems have led to scandals at dozens of crime labs
across the nation, resulting in full or partial closures,
reorganizations, investigations or firings at city or county labs in
Baltimore; Boston; Chicago; Colorado Springs, Colorado; Dallas; Detroit;
Erie County, New York; Houston; Los Angeles; Monroe County, New York;
Oklahoma City; San Antonio, Texas; San Diego; San Francisco; San Joaquin
County, California; New York City; Nashville, Tennessee; and Tucson,
Arizona, as well as at state-run crime labs in Illinois, Montana,
Maryland, New Jersey, New York, Oregon, Pennsylvania, Virginia,
Washington, North Carolina, West Virginia and Wisconsin, plus the
federally-run FBI and U.S. Army crime labs. Forensic “expert” scandals
have also been reported in the United Kingdom.

The origins of
such problems include unqualified or incompetent lab workers, personnel
using false academic credentials, contamination in labs that cause false
test results, employees falsifying test results to “help the
prosecution,” and lab examiners committing perjury. Contributing to
these problems is a lack of qualification standards and industry-wide
training requirements for lab workers.

One might think that such
scandals are caused by a few bad apples in the crime lab barrel, which
is the spin typically adopted by the labs themselves. That problem could
be fixed by hiring qualified personnel, training them properly and
providing adequate oversight. But at least the forensic science that
underpins crime lab testing is sound and valid, right? In many cases,
wrong.

A 2009 report by the National Academy of Sciences, the
most prestigious scientific organization in the United States, revealed
that much of the “science” used in crime labs lacks any form of peer
review or validation – fundamental requirements for sound science. Such
questionable forensic methods include long-established and accepted
techniques such as fingerprint comparison, hair and fiber analysis, and
bullet matching.

It's not that most of the questioned techniques have been invalidated, it's more that expert witnesses overstated their reliability and high error rates were routinely minimized. If, to use an example from last week's Forensic Science Commission Roundtable, the error rate of microscopic hair comparisons runs around 11 percent, courts have historically been too ready to accept expert testimony declaring a forensic "match." They may be right 89% of the time, but used in volume the technique can and has led to false convictions, including DNA exonerations. Most judges and attorneys, PLN showed, don't understand enough about statistics to comprehend, much less judge, error-rate issues.

This is pretty damned outrageous: Grits earlier mentioned that the city of McAllen put out a request for proposals to construct a 1,000 bed private prison facility they hope to lease to federal clients. As it turns out, though, the local newspaper knew about the deal for more than a year and agreed to cover it up until the RFP was issued. According to the McAllen Monitor ("McAllen mulls 1,000 bed private prison," July2), "Last spring, The Monitor learned about McAllen’s discussions with GEO
Group, the private prison company based in Boca Raton, Fla. At the
city’s request, The Monitor didn’t report the news to avoid tipping off
potential competitors and skunking the deal."

Is that really a newspaper's role, to cover up news to avoid "skunking the deal"? If simply reporting publicly on a deal involving taxpayer dollars would "skunk" it, maybe it's a crappy deal in the first place!

What other news is the Monitor withholding from its readers so private investors can profit from government projects? What criteria does the paper employ in deciding whether their readers deserve such information or need to be kept in the dark?

A six-month Texas Observer investigation has found that HPD
rarely disciplines its officers, and those who are sanctioned often end
up with suspensions of just a few days before resuming their duties.

The Observer compiled HPD disciplinary records from 2007 to
2012. During that span, HPD received an average of 1,200 complaints per
year, less than a third of which ended in any kind of discipline. More
than half of those punishments were written reprimands, which have
little effect on an officer’s record and no effect on his or her
paycheck.

Only 7 percent of all complaints against Houston officers ended in
serious discipline, meaning a three-day suspension or more, according to
an Observer analysis. Officers who left crime scenes, failed to secure
evidence, lied to superiors, falsified forms and, in one case, allegedly
pocketed drugs continue to police the streets of Houston.

The department’s discipline process, having evolved over decades of
negotiations between the city and police union, now functions like a
modern version of the notorious “code of silence” by which police
officers hide one another’s misdeeds. This new, institutional code of
silence is built less like a black box and more like a maze. Legitimate
complaints against misbehaving officers can dead-end at any one of a
dozen junctures, dismissed because of tiny procedural technicalities or
judgment calls in an officer’s favor. Even if a legitimate complaint
makes it through the labyrinth of regulations governing Internal Affairs
investigations, the resulting discipline is often overturned by an
independent arbitrator with only one or two days’ familiarity with the
case.

The lack of severe punishment isn’t because Houston citizens are filing scores of illegitimate complaints, according to the Observer’s
analysis of department records. Of the 1,200 or so complaints HPD
receives each year, only about 300 come from citizens. The other
900—fully three-quarters of all complaints—originate with police
officers and their supervisors.

The department and police union claim this proves that the “code of
silence” is a myth. But the same statistic raises a different question.
If officers are willing to report one another’s misconduct, why isn’t
the department willing to punish it?

In some of the most serious discipline cases, HPD tries to punish its officers but can’t.

DePrang performed yeoman's service by filing open records requests to delve into dozens of arbitration proceedings at a level of detail rarely seen for Texas civil service cities. Excellent reportage. Read the whole thing. Most charges sustained against officers by the department resulted in overturning or reducing punishments. Her story concluded:

The fact that arbitrators overturn or reduce Internal Affairs’
decisions two-thirds of the time suggests a problem with HPD’s
discipline system, the arbitration system, or both. Fortunately,
peer-reviewed research on this phenomenon already exists.

In 2002, the journal Police Quarterly published a study on a
city where, during a five-year span, arbitrators reduced the total
number of officer suspension days by almost half. The author, Mark Iris,
noted that at this department, “Any decision to take disciplinary
action against an officer is made only after an internal investigation
has passed through a multistage review process. Disciplinary measures
are deliberated and considered carefully.”

When so many cases are reduced or overturned, Iris wrote, “the
message to all those with a stake in the disciplinary process—the
accused officer, the complainant (whether it is a citizen or the
officer’s supervisor), interested media observers, the Internal Affairs
investigators, police chief and management, and so forth—is that their
efforts may be for naught.”

Thursday, July 11, 2013

Author and journalism professor Michael Berryhill, whose book The Trials of Eroy Brown was published in 2012, asked Grits to publish an essay on an infamous murder case out of Houston in which he alleged the media allowed themselves to be manipulated by victim advocates into spreading falsehoods and libels about the offender during the parole process, including falsely accusing a prison chaplain of having sex with him and other inmates. Berryhill even turned the episode into a graduate seminar to demonstrate to his journalism students, "How the News
Media Have Played and Were Played." Find his extended essay after the jump.

Wednesday, July 10, 2013

Grits readers will find little new in this Texas Tribune story analyzing criminal-justice reform legislation from the 83rd Texas Legislature, but I thought the prosecutor association lobbyist's comments were interesting:

“The dynamic at the Capitol is definitely changing in criminal
justice,” said Shannon Edmonds, director of governmental relations at
the Texas District and County Attorneys Association.

Edmonds said that with more libertarian-leaning members of the
Republican Party, the approach has become less focused on Texas’
traditional tough-on-crime ways. For instance, he said, more Republican
legislators are inclined to vote with Democrats for reduced penalties
for small amounts of drugs.

“Along the political spectrum, as people go to the left end and the
right end, it’s not actually a line, it’s really a circle,” Edmonds
said. “And the left end and right end actually loop around and meet each
other.”

He's right. The typical left-right spectrum simplistically portrayed by the media doesn't really apply to criminal justice politics. As gerrymandering has led to safe districts for ideologues further and further from the center, right and left, other policy areas have frequently petrified with inaction. But on criminal justice, that dynamic opened up opportunities for the sort of left-right coalitions responsible for passing every piece of Texas criminal-justice reform legislation since the turn of the century.

That said, I find the article's headline saying the Tea Party is "soft" on crime laughable and off-base. What's really happening here is that the Tea Partiers are more willing than establishment Republicans to be guided by the Constitution and the Bill of Rights instead of fear mongering by the victimocracy. And they're more committed to fiscal conservatism and less interested in pandering to the array of special interests, from police unions to private prisons, with vested financial stakes in ballooning justice costs. Shannon understandably would like to pivot back to the sort of culture-war debates over the death penalty that drove justice politics 20-30 years ago. Like an '80s metal band, however, that fad has faded and is unlikely to return soon. Time for the prosecutors to re-consider their message. I doubt they can bully the current crop of Tea Party legislators with threats of calling them "soft on crime" in the same way that's worked for them in the past. In fact, if they keep it up, the tactic could begin to backfire.

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